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Sanitized Copy Approved for Release 2011/08/12 : CIA-RDP05T02051R000200350024-5 






THURSDAY, JULY 28, 1988 


Extradition Policy Is Politics in Another Guise 

To the Editor: 

The problem of enforcing the nor- 
mal criminal law against “terrorists” 
is simpler than appears to those 
quoted in “The Arm of American Law 
Turns Qut to Be Not So Long” (Week 
ih Review, July 3). The “political of- 
fense” exception to extradition obliga- 
tions does not apply to a number of 
What are normally considered terror- 
ist offenses in supervening treaty law, 
and those cases in which the exception 
has blocked extradition appear mainly 
to involve the kinds of acts soldiers 
perform, acts that in a military con- 
text are not crimes at all. 

Indeed, many Americans are de- 
scended from the failed revolution- 
aries pf 19th-century Europe, who 
were called criminal by the govern- 
ments they sought to overthrow by 
“unauthorized” force; the Minute- 
pien of Lexington and Concord were 
regarded as criminals by the British 
authorities of the time; John Paul 
Jones was called a pirate because the 
authority of the Continental Congress 
to issue his letters of marque was 
denied by the British. 

The problem with the atrocious acts 
that foreign and American courts 
have held to be political (and thus not 
subject to extradition because part of 
a political struggle) appears to be a 
legal confusion by the executive 
branch, not the courts. Accepting the 
plea of the Puerto Rican “freedom 
fighter” William Morales, whose ex- 
tradition to the United States was 
denied by Mexico, would not free him 
from legal accountability; it would 
subject him to the laws of war. Under 
the 1949 Geneva Conventions, target- 

ing civilians could be “murder,” re- 
quiring the state to which he fled to try 
him or extradite him. 

As far as 1 can see, either Mr. Mo- 
rales’s acts were not such as to exceed 
what our own failed-revolutionary an- 
cestors did before leaving their Euro- 
pean struggles, or we never sought ex- 
tradition except under the normal 
criminal law, which is not necessarily 
the law that applies for political ris- 
ings. That we wish, for political rea- 
sons at home, to call Mr. Morales a 
common criminal does not bind him or 
Mexico to that categorization. 

The obvious answer is to seek to 
have him extradited as either a com- 
mon criminal or war criminal, at the 
discretion of the Mexican courts. 
Since both results are the same, he 
would be extradited without Mexico’s 
having to determine which is the ap- 
propriate law, thus preserving "neu- 
trality” in a question of legal labeling. 

The same reasoning applies to*1he 
case of Mohammed All Hamadei, a 
Palestinian from Lebanon wanted in 
the 1985 hijack of a T.W.A. jetliner, ex- 
cept that West Germany is trying Mr. 
Hamadei as required by the 1970 
Hague Convention on Aerial Hijacking 
and the 1949 Prisoners of War and 
Civilians Conventions that make a 
“grave breach” of the murder of the 
Navy diver Robert Stethe m . 

The only loophole would be cases in 
whip courts hold the law of war inap- 
plicable, though the offense is political 
in the sense of an extradition treaty, 
thus allowing a legal haven for a time 
fof those who, were they soldiers, 
would be war criminals or “grave 
breachers” of one or another of the 

1949 conventions. It is hard to see that 
result standing the test of experience 
or legislative attention. 

The odd thing about all this is that 
the 1949 Geneva conventions and other 
multilateral treaties we are a party to 
that remove the political offense ex- 
ception where there is an international 
consensus, like aerial hijacking, are 
not regarded by the Justice Depart- 
ment as treaties for setting the usual 
extradition procedures in motion. And 
our supplemental extradition treaty 
with Britain, which does trigger proce- 
dures and incorporates some of the 
.multilateral treaties, has been used in 
the Joseph Doherty and Peter McMul- 
len cases without reference to the mul- 
tilateral treaties, apparently because 
under them neither of those men 
would be extraditable. 

Thus, it appears that United States 
officials are really complaining that 
they cannot use extradition to ally us 
with a foreign government that calls 
its enemies “criminals” or, as in the 
Morales and Hamadei cases, exer- 
cise American jurisdiction over 
American political fanatics fleeing 
abroad or foreign fanatics who are 
being tried by a concerned govern- 

Prof, of Inti. Law, Fletcher School 
of Law & Diplomacy, Tufts U. 

Medford, Mass., July 12, 1988 


Sanitized Copy Approved for Release 2011/08/12 : CIA-RDP05T02051R000200350024-5